Court: Rivers may keep seat

West Bay legislator and Cabinet minister Tara Rivers was cleared of challenges to her eligibility for elected office on Friday, with Cayman Islands Chief Justice Anthony Smellie declaring her resident in two places and approving her US passport.

The late-afternoon decision was greeted enthusiastically, as friends and supporters spilled from the courtroom into the street and offered their congratulations to the embattled government minister.

In a statement following the verdict, Ms Rivers, under threat from a 12 June challenge to her 22 May general election victory, expressed her relief at the vindication.

“There was never any surety in this,” she said of the prolonged uncertainty, “but I felt I was correct. Thanks to my supporters and friends and the Cabinet, and the overwhelming support from the country.

“I am thankful to the court for setting a very clear precedent. As a country, we are much clearer now as to what the constitutional provisions mean. I am very thrilled that my position has been affirmed by the court.

“The people of the district are ecstatic, and have been a source of strength for me,” she said, declaring she was ready to get on “with what I do and my plans for the people of the country.

“Now I can devote 100 per cent of my energy to education, employment and gender affairs.”

The much-anticipated decision came after arguments on 17, 18 and 19 July around a post-election petition alleging Ms Rivers had violated constitutional provisions requiring candidates for national elections to be resident for seven years prior to their nomination and possess no alternative citizenship.

Between 2006 and 2009, Ms Rivers worked for London law firm Allen & Overy, where she gained a British passport. By birth she also carries a US passport.

The petition, filed by John Gordon Hewitt, husband of West Bay candidate Velma Powery-Hewitt, sought to overturn Ms Rivers’s election, replacing her with Ms Powery-Hewitt, who finished fifth in the four-seat district.

Justice Smellie on Friday addressed the arguments, ultimately finding them insufficient to void the election results.

Dividing the challenge into “the residency objection” and “the passport objection”, the chief justice accepted cautions by Ms Rivers’s lead counsel, professor Jeffrey Jowell, that ambiguities in the law should be strictly interpreted “to protect electoral choice”.

“We must seek the real effect of constitutional provisions and reflect the equality and freedom of citizens to participate in elections, and most of all to have confidence in [their] elected representatives,” he said.

He described as “compelling” professor Jowell’s arguments that Ms Rivers was resident in both London and the Cayman Islands for her 31-month period at Allen & Overy, citing Cayman Islands Court of Appeal precedents that “residency could be maintained in more than one place”, as well as the fact that Ms Rivers “kept her West Bay home, records and papers, and was home for visits frequently and regularly.

“Her UK tax return said she was not ordinarily resident in the UK,” he said.

“I am satisfied she was resident in the Cayman Islands, London notwithstanding,” he said.

He also rejected suggestions she had been absent for more than 400 days while in London, a crucial part of constitutional prescriptions providing exemptions to the seven-year rule that encompass government employment and education.

“It can be allowed as a student at an educational establishment,” he said, calling his interpretation “a generous and progressive construction” of the legal provision, and accepting Ms Rivers’s claim that Allen & Overy provided training, experience and exposure.

“Many Caymanians are living away for a period of time till they establish themselves in the Cayman Islands,” he said. The Constitution was “never meant to disqualify candidates who were away to gain education, expertise and specialised training”.

In a modern, competitive world, it is unrealistic to limit educational experience “to colleges, universities and other academic institutions. I see no reason,” he said, that “attendance as a trainee lawyer in an organised, constructive programme may not qualify as an educational establishment”.

He alluded to Ms Rivers’s 115 hours of instruction, 68 classes, 43 lectures, two seminars and 10 tutorials at Allen & Overy, “certified to the Solicitors Registration Authority”, likening the programme to similar training in medicine and accountancy.

“The 400 days is to be disregarded,” Justice Smellie said. He made short work of the passport issue, observing that both precedent and expert testimony established that use of a US passport did not indicate “acknowledgement of allegiance or obedience to a foreign power”. US law explicitly forbids loyalty oaths in exchange for a passport, a document only “incident of citizenship”.

A passport, he said, was “only a voucher and a means of identification. There is no authority that a passport places a person under allegiance. It conveys no real legal significance and no rights flow from it other than citizenship itself.

“The Cayman Islands Constitution expressly tolerates” ownership of a foreign passport, he said, “because she did not gain citizenship by her own act”.

The weight of argument, the chief justice concluded, “does not allow me to accede to the petition. The period she spent abroad shall be disregarded. The petition fails on both grounds.”

Reacting to the decision, Steve McField, attorney for Mr. Hewitt, agreed with the court that the petition had sparked important debate.

“It was not a frivolous thing,” he said. “It’s a matter of determining what the Constitution is.”

Premier Alden McLaughlin expressed relief over the decision, clarifying the Constitution, avoiding a district by-election and enabling government to get back to work.

“I am absolutely elated, over the moon, immensely relieved,” he said, lamenting the distractions of two months.

”Now, on Monday, we can get back down to work and get on with it,” he said, bringing a full budget to the public by the end of September.

“Particularly after the chief justice read her outstanding resume, Minister Rivers is an absolutely brilliant woman and a most able Minster.”

A by-election, he said, would have been disruptive, changing the make-up of Cabinet and the Legislative Assembly. “Besides, we would have lost one of the brilliant minds on our team.”

“I am a bit overwhelmed right now, but absolutely delighted. I will sleep better tonight than I have in many months,” Mr. McLaughlin said. “For the first time, we have real clarity on the provision about passports, the issue of what qualifies as an ‘educational establishment’ for the purposes of the constitutional provision as well as residency.”

Petitioner John Gordon Hewitt and his wife, former West Bay candidate Velma Powery-Hewitt, emerge from the courthouse after hearing the ruling by Chief Justice Anthony Smellie.

West Bay representative Tara Rivers is greeted by enthusiastic supporters after her victory in court allows the newly minted Cabinet minister to retain her position in the Cayman Islands legislature. – Photo: Chris Court

1 COMMENT

I do not doubt her qualifications, experience and nature make her a suitable person for her position in cabinet but why on one hand, can the elections office send a letter to Mr. Christian stating that he is ineligible to run and was Tara was allowed to run?

Tara is a extremely intelligent person and well versed in the laws of Cayman given her choice of career. Do you think she was unaware of the potential for her election to be contested on the grounds of ineligibility? No, I believe she was aware but ran anyway while Mr. Christian was not even allowed to run.

What recourse does he have now? None. Too bad too sad. All he can do is run in the next election and tear up any letters he receives from the elections office stating otherwise.

This whole thing is some real funny business. I blame the elections office. Somebody was looking to eliminate potential candidates as competition and Mr. Christian was a easy target because he had a US passport. Seems like the only foolish thing he did was listen to the elections office as the precedent had already been set.

Many other previously elected members hold US passports and they were elected to office, no problem. That is why Tara ran and knew she could not be removed once elected. She knew it and the Judge knew it, which is why he had to uphold her election. If the Judge did not, Tara would have a easy time with her appeal knowing well that the precedent was already set and call out the people that were previously elected with US passports.

Suffice it to say that it was a open and shut case from the beginning with only the appearance that the plaintiff had a real case.